Eric Smith v. Timothy Friederichs ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC EUGENE SMITH, No. 18-15177
Plaintiff-Appellant, D.C. No. 4:16-cv-06203-YGR
v.
MEMORANDUM*
TIMOTHY W. FRIEDERICHS, Dr.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted December 17, 2018**
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
California state prisoner Eric Eugene Smith appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging an Eighth
Amendment violation and medical negligence. We have jurisdiction under 28
U.S.C. § 1291. We review de novo, Nunez v. Duncan, 591 F.3d 1217, 1222 (9th
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Cir. 2010), and affirm.
The district court properly granted summary judgment on Smith’s deliberate
indifference claim because Smith neither exhausted his administrative remedies
nor raised a genuine dispute of material fact as to whether administrative remedies
were effectively unavailable. See 42 U.S.C. § 1997e(a); Ross v. Blake, 136 S. Ct.
1850, 1858-60 (2016) (describing the limited circumstances under which
administrative remedies are deemed unavailable); Woodford v. Ngo, 548 U.S. 81,
90 (2006) (“[P]roper exhaustion of administrative remedies . . . means using all
steps that the agency holds out, and doing so properly (so that the agency addresses
the issues on the merits).” (internal quotation marks and emphasis omitted)).
We do not consider Smith’s contentions and evidence concerning an attempt
to grieve his medical treatment, which he presents for the first time on appeal. See
Cruz v. Int’l Collection Corp., 673 F.3d 991, 998-99 (9th Cir. 2012).
Smith has waived any challenge to the remaining aspects of the district
court’s ruling because he did not argue them in his opening brief. See Acosta–
Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993) (issues not supported by
argument in a pro se appellant’s opening brief are waived).
AFFIRMED.
2 18-15177